Meaning of Terms as Used in This Subchapter; Representation Proceedings; Miscellaneous and General Requirements

FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2421, 2422, and 2429

Meaning of Terms as Used in This Subchapter; Representation

Proceedings; Miscellaneous and General Requirements

AGENCY: Federal Labor Relations Authority.

ACTION: Final rules.

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SUMMARY: The Federal Labor Relations Authority is amending its

regulations governing representation proceedings and related provisions

of other regulations that define or reference provisions of the

representation regulations. These amendments will streamline the

regulations and make the regulations more flexible in addressing the

representational concerns of agencies, labor organizations, and

individuals.

EFFECTIVE DATE: March 15, 1996.

FOR FURTHER INFORMATION CONTACT: Solly Thomas, Executive Director,

Federal Labor Relations Authority, 607 14th Street, N.W., Washington,

D.C. 20424-0001.

SUPPLEMENTARY INFORMATION:

Transition Rules and Regulations

Part 2422 of the regulations of the Federal Labor Relations

Authority governs representation proceedings. Several terms involved in

representation proceedings and used in Part 2422 are defined in certain

sections of Part 2421 of the regulations of the Federal Labor Relations

Authority. Additionally, there are references in Part 2429 of the

regulations to specific sections in Part 2422. The current definitions

and regulations will continue to govern all representation cases

currently pending before the Federal Labor Relations Authority and

those for which representation petitions are filed before March 15,

1996.

Notice and Opportunity to Comment

The Federal Labor Relations Authority proposed revision to its

regulations regarding the meaning of certain terms used in Subchapter C

(Part 2421) and representation proceedings (Part 2422). The proposed

revision was for the purpose of streamlining the regulations and making

the rules more flexible in addressing the representational concerns of

agencies, labor organizations, and individuals. The proposed rules were

published in the Federal Register for notice and comment on August 4,

1995. Customer views were solicited via a focus group meeting on August

29, 1995, and formal written comments were submitted by both agencies

and labor organizations. All comments have been considered and many

comments have prompted substantive revisions to the proposed rule. Any

such revision is noted in the section-by-section analysis.

Section-by-Section Analysis

The following sectional analysis reflects revisions to the proposed

changes to Part 2421--Meaning of Terms As Used in This Subchapter and

Part 2422--Representation Proceedings. Following this analysis,

conforming amendments to Part 2429--Miscellaneous and General

Requirements are briefly explained.

Part 2421

Section 2421.11

The proposed definition of ``party'' has been narrowed to clarify

that it does not include an individual in those instances referenced in

subsection (b).

Section 2421.18

Final rule is same as proposed rule.

Section 2421.19

The order of reference to agency or activity has been reversed.

Section 2421.20

Final rule is same as proposed rule.

Section 2421.21

The proposed definition has been narrowed to clarify that those

parties ``affected by issues raised'' in a petition include agencies,

activities or labor organizations, but not bargaining units.

Section 2421.22

Final rule is same as proposed rule.

Part 2422

Section 2422.1

The final sentence in proposed subsection (a)(2) has been

redesignated as subsection (3) to clarify that the showing of interest

requirement pertains to all petitions filed under subsection (a). One

commenter questioned whether any purposes for which petitions could

have been filed have been eliminated by the consolidation of the former

separate petitions into a single petition. As noted in the

supplementary information accompanying the proposed rule, all functions

of the former separate petitions are incorporated into the single

petition.

Section 2422.2

Several commenters objected to the fact that, unlike the current

regulations, the proposed regulation did not specify the purposes for

which listed entities may file petitions. For example, under current

practice, labor organizations can file petitions for eligibility for

dues allotment; individuals can file petitions seeking an election to

determine if employees in a unit no longer wish to be represented;

agencies can file petitions based upon good faith doubt as to the

continued appropriateness of a currently recognized labor organization

to represent an existing unit; and, petitions to consolidate existing

units can be filed by an agency, a labor organization, or both may file

jointly. Agreeing with the commenters that the proposed regulation

could lead to confusion, the final regulation has been revised to

clarify which entities have standing to file which representation

petitions. The order of reference to agency or activity has been

reversed.

Section 2422.3

The order of reference to agency or activity in subsections (a)(1)

and (a)(2) has been reversed.

Section 2422.4

The proposed rule offered two options concerning the service of

supporting documentation. Under Option 1, supporting documentation,

with the exception of showings of interest, would be served on all

affected parties. Under Option 2, supporting documentation, with the

exception of showings of interest, challenges to showings of

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interest, challenges to the status of a labor organization, and

objections to elections, would be served. Some commenters favored

option 1, one commenter favored option 2, and one commenter disagreed

with both options, recommending broader service of everything except

challenges to the validity of a showing of interest, which would be

served only upon the specific entities involved in the challenge. In

response to comments concerning options 1 and 2, the final rule adopts

a compromise position as a rule that is in the best interest of both

the parties and the representation process. Under this rule all

documentation, except showings of interest, material that supports

challenges to the validity of the showing of interest, and

documentation which supports election objections, will be served on all

parties affected by issues raised in the filing. A superfluous

introductory phrase which was included in both options of the proposed

regulation has been deleted.

Section 2422.5

Final rule is same as proposed rule.

Section 2422.6

Comments have prompted several modifications to subsection (a) of

the proposed regulation. First, one commenter noted that the phrase

``interested parties'' is vague and could be construed too broadly.

Accordingly, the title of the subsection has been amended to simply

refer to ``parties.'' Second, in response to a comment noting that

parties affected by issues raised in a petition should be provided

notification whether or not the filer identified them as being

affected, and a comment noting that the obligations on the Regional

Director are unclear, a second sentence has been added clarifying the

obligations of the Regional Director vis-a-vis other parties. In

subsection (b)(2) of the final rule, ``(s)'' was added to the word

``unit'' in recognition of the fact that more than one unit may be

affected by issues raised in the petition.

Section 2422.7

In subsection (a) the phrase ``distribute copies of a notice'' has

been inserted for additional clarity between the phrase ``and/or'' and

the word ``in.'' For the same reasons referenced in the preceding

section, the phrase ``interested parties'' has been deleted from the

final rule.

Section 2422.8

One commenter noted that as drafted, the proposed regulation

inferred in subsection (a) that cross-petitions could be filed only for

the purpose of seeking an election. The subsection has been revised to

correct this misimpression. Several commenters objected to subsection

(b) of the proposed regulation permitting intervention and cross

petitions to be filed until the close of the hearing. Recognizing that

such belated filings could be disruptive to the representation process,

the final rule revises the subsection to require, absent a showing of

good cause, that such filings be submitted before the hearing opens.

Also in subsection (b), the phrase ``and/or filed with and submitted

to'' was changed in the final rule to ``and filed with either.'' In

subsection (d), the word ``intervention'' has been deleted from the

title and the phrase ``a party'' has been substituted for the phrase

``an intervenor.'' Lastly, in response to comment, proposed subsection

(e) has been subdivided into two separate subsections. The revised and

final subsection (e) provides the circumstances under which an

employing agency will be considered a party; subsection (f) indicates

the evidence an agency or activity must submit to intervene in a

representation proceeding.

Section 2422.9

Final rule is same as proposed rule.

Section 2422.10

For consistency with other provisions of the rules, the phrase

``submitted to'' is changed in subsection (b) of the final rule to the

phrase ``filed with.'' Subsection (c) of the proposed rule has been

revised to bring it into conformity with the revisions made to section

2422.8(b). As a result, challenges to the validity of a showing of

interest, like requests to intervene and cross- petitions, must, absent

good cause, be filed before the hearing opens.

Section 2422.11

Subsection (b) of the proposed rule has been revised to bring it

into conformity with the revisions made to section 2422.8(b) and

section 2422.10(c). Accordingly, challenges to the status of a labor

organization, like requests to intervene, cross-petitions, and validity

challenges, must, absent good cause, be filed before the hearing opens.

Section 2422.12

The second sentence in subsection (b) has been broadened to clarify

that the certification bar applies during the statutory period of

agency head review referenced in subsection (c). The phrase ``signed

and dated'' or ``has been signed and dated'' in subsections (b),(d),

and (e), has been changed to ``is in effect.'' As proposed, the

regulations conditioned the various bars on the presence of a ``signed

and dated'' agreement and did not take into account that an agreement

can take effect through methods other than execution, e.g., 5 U.S.C.

7114(c)(3). For the same reason, the phrase ``and signed'' has been

deleted from subsection (g). Also in subsection (g) the phrase ``more

than,'' before the phrase ``sixty (60) days,'' has been changed in the

final rule to ``prior to,'' in order to clarify that the referenced 60

day time period does not apply to the duration of the extension.

Subsection (e) has been modified to apply only to situations where the

collective bargaining agreement has a term of more than three (3)

years. The word ``days'' after the number ``(105)'' has also been

deleted from subsection (e). One commenter noted that unlike the prior

regulations, the revised rules do not provide specific guidance

concerning the timeliness of petitions seeking to consolidate

bargaining units. The general guidance concerning timeliness, contained

in various subsections within this section of the final rules, will

apply, as appropriate, in consolidation situations.

Section 2422.13

Final rule is same as proposed rule.

Section 2422.14

One commenter questioned whether the reference in proposed

subsection (a) to ``another petition'' referred to another petition

being filed by the same party or to a petition filed by any other

party. The phrase is intended to refer to the latter, i.e., no

petition, regardless of who filed it, would be considered timely during

the period in question. Also in subsection (a), the phrase ``agency

or'' has been added in the final rule before the word ``activity,'' for

consistency of reference with other parts of the rule. Another

commenter noted the inconsistency between proposed subsections (b) and

(c). In response to this comment, the final rule amends subsection (b)

to treat petitioners seeking an election somewhat like the proposed

rule treated incumbents, i.e., petitions to represent the same unit, or

a subdivision thereof, are prohibited for 6 months if not withdrawn

within the time constraints described in subsection (b). However, the

final rule does not treat withdrawals by petitioners the same as

withdrawals by incumbents. In the former situation, the purpose of the

bar is to discourage an election petitioner's dilatory withdrawal

because such action will inconvenience all concerned. In the latter,

the purpose of

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the bar is to prevent an incumbent from totally avoiding the possible

effect of a bar by withdrawing prior to an election. As a result,

unlike a petitioner seeking an election, an incumbent may not avoid the

effect of an election bar by filing a timely withdrawal. The titles to

subsection (b) and (c) have been abbreviated.

Section 2422.15

One commenter noted that by locating the cooperation requirement as

a subsection in a section addressing the duty to furnish information,

the regulation suggested that providing information was the primary

component of the cooperation obligation. Agreeing with this point, the

title of the section has been broadened and proposed subsection (c) has

been rewritten to specifically articulate the duty of all parties to

cooperate.

Section 2422.16

One commenter suggested that the ``method of election,'' i.e.,

typically mail or manual balloting, be listed as a procedural

determination that the Regional Director could make. This suggestion

has been incorporated into subsection (b) of the final rule. The word

``an'' has been deleted before the word ``Election'' in subsection (b)

of the final rule. In subsection (c)(2) the word ``the'' before the

phrase ``unit appropriateness'' has been omitted from the final rule. A

minor punctuation change has been made in subsection (c) of the final

rule.

Section 2422.17

The title of the section has been expanded to include a reference

to the prehearing conference. One commenter noted that the section's

use of the phrase ``employees and interested parties'' was vague and

could be construed too broadly. Accordingly, subsection (b) has been

revised to refer to ``affected parties.'' It was also noted that the

notice of hearing does not identify issues or establish prehearing

dates; as a result, the final sentence in subsection (b) has been added

to reflect that notice of these matters will be separate. The revisions

to subsection (c) make it consistent with the changes made to final

subsection (b). A commenter noted that the title and body of proposed

subsection (d) were inconsistent. The title and body of subsection (d)

have been revised to indicate that there is no interlocutory appeal of

a Regional Director's decision of whether to hold a hearing.

Section 2422.18

Final rule is same as proposed rule.

Section 2422.19

Subsection (c)(2) of proposed rule has been deleted to bring this

section of the final rule into conformity with revisions made to

section 2422.8(b).

Section 2422.20

In subsection (b) of the final rule the word ``copy'' is changed

for clarification purposes to ``copies,'' and the word ``between'' is

changed to ``between/among.''

Section 2422.21

Subsection (a) of this proposed section offered two options. Option

1 followed current regulations. Option 2 specifically authorized a

Hearing Officer to make recommendations on the record on any issue. All

commenters addressing this section favored option 2. Record

recommendations would advise the parties of the Hearing Officer's views

and could facilitate resolution of questions under consideration.

Moreover, the Hearing Officer's recommendations could be helpful to the

Regional Director in resolving certain issues. As a result, the final

rule incorporates option 2. The final rule includes minor changes,

substituting an ``and'' for a comma and substituting the word

``Duties'' for the word ``Duty'' in the title of subsection (a).

Section 2422.22

Final rule is same as proposed rule.

Section 2422.23

Subsection (a) has been revised to clarify that the Regional

Director will decide whether to conduct or supervise the election and

agencies are obliged to assist as specified. In subsection (b) of the

final rule the word ``distributed'' has been added between the phrases

``and/or'' and ``in a manner,'' for the sake of consistency with a

similar change in Sec. 2422.7(a) of the final rule. In subsection (e),

the word ``procedures,'' which was inadvertently included, has been

deleted, and the word ``with'' has been substituted for the word ``to''

before the phrase ``the Authority.'' The final rule reframes subsection

(h)(2) & (3) in positive terminology to reflect who can, rather than

who cannot, serve as an observer. Subsection (h)(2)(i) has been revised

to incorporate the statutory terminology contained in 5 U.S.C. 7103(a)

(10) & (11). One commenter recommended that proposed subsection (h)(3)

be revised to prevent union officials from acting as observers for

labor organizations. This suggestions has been adopted in part and is

reflected in subsection (h)(3)(ii).

Section 2422.24

In subsection (b) of the final rule, parentheses were placed around

the letter ``s'' in the word ``ballots'' in the phrase ``unresolved

challenged ballots,'' for the sake of consistency with other references

to ballots in the subsection.

Section 2422.25

A minor grammatical change was made in subsection (b) of the final

rule.

Section 2422.26

Subsection (a) has been clarified to reflect that only a party may

file an objection to an election. One commenter objected to the

requirement that objections must be ``received by'' the Regional

Director within 5 days of the furnishing of the tally of ballots and

recommended that the Authority retain the ``postmarked by'' rule. The

final rule adopts the ``received by'' rule as preferable because it

allows the Regional Director to certify election results after a fixed

period if no objections are lodged. The ``postmark'' rule would require

the Regional Director to delay acting for some uncertain period of time

after 5 days have passed in order to provide timely posted objections--

if there are any--an opportunity to arrive. Note that pursuant to 5 CFR

2429.21(a), intermediate Saturdays, Sundays, and Federal legal holidays

are excluded from the 5-day period.

Section 2422.27

The order of subsections (c) and (d) has been reversed for

clarification purposes. One commenter questioned whether the

opportunity for a hearing, provided for under the previous regulations,

would continue. The revised final regulations do not discontinue the

opportunity for a hearing on challenged ballots.

Section 2422.28

Final rule is same as proposed rule.

Section 2422.29

Final rule is same as proposed rule.

Section 2422.30

One commenter noted that as proposed, subsection (c)--in

conjunction with sections 2422.8(b), 2422.10(c), and 2422.11(c)--

extends the time period for filing interventions, cross petitions, and

challenges until after the Regional Director has directed an election

or approved an election agreement. This would be disruptive of the

representation process. Accordingly, the final subsection (c) has been

revised to include directing an election or approving an election

agreement.

[[Page 67291]]

Section 2422.31

Language in the current regulation (5 CFR 2422.17(b)) has been

added to subsection (b) of the final rule. Subsection (c) of the

proposed regulation offered two options for when the Authority would

grant an application for revi ew of a Regional Director's decision.

Option 1 retained the current grounds for review with minor editorial

changes. Option 2 specified that, in addition to satisfying one or more

of those grounds, a party seeking review was obliged to assert and

establish that the Authority's decision would have a substantial impact

on labor-management relations law unless the Authority determines, in

its discretion, that extraordinary circumstances exist to grant review.

Option 1 was the overwhelming preference of those commenting on this

subsection. The final rule adopts a modified version of option 1. An

error in phraseology in subsection (f) has been corrected.

Section 2422.32

An incorrect reference in proposed subsection (a)(2) has been

revised to refer to section 2422.31(e). The ``Revocations'' subsection,

mistakenly identified as subsection (c), has been redesignated as

subsection (b).

Section 2422.33

Final rule is same as proposed rule.

Section 2422.34

Several commenters noted and objected to subsection (a) of the

proposed regulation changing current law by requiring the fulfillment

of representational and bargaining obligations during periods when

there is a ``question concerning representation.'' The commenters are

correct that this subsection is, in some respects, a change from

current law. This revision is intended to allow more flexibility during

such periods through the exercise of bargaining and representational

obligations. As such, the modification of the law enhances both

government efficiency and federal sector labor relations. Proposed

subsection (b) has been amended by adding statutory references which

define the term ``employee'' and provide for which employees may be

included within a unit. The inclusion of this phrase is intended to

clarify that subsection (b) only trumps subsection (a) to the extent

that subsection (b) allows parties to take action based on unit status

of individuals.

Part 2429

Changes to Part 2429 are required as a result of the different

section numbers in the revised Part 2422.

Section 2429.21

In subsection (a), in discussing how time will be computed in

various bar situations, there are two references to sections 2422.3 (c)

and (d). In the revised regulations, the bars to which this section

refers will be located in section 2422.12 (c), (d), (e), and (f). In

subsection (b), the filing of a representation petition is listed as an

exception to the ``postmark date'' rule and reference is made to

section 2422.2. Because the revised regulations have numerous sections

dealing with such filings, the reference is changed to Part 2422.

Section 2429.22

The revised regulations address applications for review of a

Regional Director Decision and Order in section 2422.31. Accordingly,

the reference to section 2422.17 is changed to section 2422.31.

List of Subjects

5 CFR Part 2421

Government employees, Labor-management relations.

5 CFR Part 2422

Administrative practice and procedure, Government employees, Labor

unions.

5 CFR Part 2429

Administrative practice and procedure, Government employees, Labor-

management relations.

For the reasons set forth in the preamble, the Federal Labor

Relations Authority amends Parts 2421, 2422, and 2429 of its

regulations as follows:

PART 2421--MEANING OF TERMS AS USED IN THIS SUBCHAPTER

1. The authority citation for Part 2421 continues to read as

follows:

Authority: 5 U.S.C. 7134.

2. Section 2421.11 is revised to read as follows:

Sec. 2421.11 Party.

Party means:

(a) Any labor organization, employing agency or activity or

individual filing a charge, petition, or request;

(b) Any labor organization or agency or activity

(1) Named as

(i) A charged party in a charge,

(ii) A respondent in a complaint, or

(iii) An employing agency or activity or an incumbent labor

organization in a petition;

(2) Whose intervention in a proceeding has been permitted or

directed by the Authority; or

(3) Who participated as a party

(i) In a matter that was decided by an agency head under 5 U.S.C.

7117, or

(ii) In a matter where the award of an arbitrator was issued; and

(c) The General Counsel, or the General Counsel's designated

representative, in appropriate proceedings.

3. Sections 2421.18 through 2421.22 are added to read as follows:

Sec. 2421.18 Petitioner.

Petitioner means the party filing a petition under Part 2422 of

this Subchapter.

Sec. 2421.19 Eligibility period.

Eligibility period means the payroll period during which an

employee must be in an employment status with an agency or activity in

order to be eligible to vote in a representation election under Part

2422 of this Subchapter.

Sec. 2421.20 Election agreement.

Election agreement means an agreement under Part 2422 of this

Subchapter signed by all the parties, and approved by the Regional

Director, concerning the details and procedures of a representation

election in an appropriate unit.

Sec. 2421.21 Affected by issues raised.

The phrase affected by issues raised, as used in Part 2422, should

be construed broadly to include parties and other labor organizations,

or agencies or activities that have a connection to employees affected

by, or questions presented in, a proceeding.

Sec. 2421.22 Determinative challenged ballots.

Determinative challenged ballots are challenges that are unresolved

prior to the tally and sufficient in number after the tally to affect

the results of the election.

4. Part 2422 is revised to read as follows:

PART 2422--REPRESENTATION PROCEEDINGS

Sec.

2422.1 Purposes of a petition.

2422.2 Standing to file a petition.

2422.3 Contents of a petition.

2422.4 Service requirements.

2422.5 Filing petitions.

2422.6 Notification of filing.

2422.7 Posting notice of filing of a petition.

2422.8 Intervention and cross-petitions.

[[Page 67292]]

2422.9 Adequacy of showing of interest.

2422.10 Validity of showing of interest.

2422.11 Challenge to the status of a labor organization.

2422.12 Timeliness of petitions seeking an election.

2422.13 Resolution of issues raised by a petition.

2422.14 Effect of withdrawal/dismissal.

2422.15 Duty to furnish information and cooperate.

2422.16 Election agreements or directed elections.

2422.17 Notice of hearing and prehearing conference.

2422.18 Hearing Procedures.

2422.19 Motions.

2422.20 Rights of parties at a hearing.

2422.21 Duties and powers of the Hearing Officer.

2422.22 Objections to the conduct of the hearing.

2422.23 Election procedures.

2422.24 Challenged ballots.

2422.25 Tally of ballots.

2422.26 Objections to the election.

2422.27 Determinative challenged ballots and objections.

2422.28 Runoff elections.

2422.29 Inconclusive elections.

2422.30 Regional Director investigations, notices of hearings,

actions and Decisions and Orders.

2422.31 Application for review of a Regional Director Decision and

Order.

2422.32 Certifications and revocations.

2422.33 Relief obtainable under Part 2423.

2422.34 Rights and obligations during the pendency of

representation proceedings.

Authority: 5 U.S.C. 7134.

Sec. 2422.1 Purposes of a petition.

A petition may be filed for the following purposes:

(a) Elections or Eligibility for dues allotment. To request:

(1) (i) An election to determine if employees in an appropriate

unit wish to be represented for the purpose of collective bargaining by

an exclusive representative, and/or

(ii) A determination of eligibility for dues allotment in an

appropriate unit without an exclusive representative; or

(2) an election to determine if employees in a unit no longer wish

to be represented for the purpose of collective bargaining by an

exclusive representative.

(3) Petitions under this subsection must be accompanied by an

appropriate showing of interest.

(b) Clarification or Amendment. To clarify, and/or amend:

(1) A recognition or certification then in effect; and/or

(2) Any other matter relating to representation.

(c) Consolidation. To consolidate two or more units, with or

without an election, in an agency and for which a labor organization is

the exclusive representative.

Sec. 2422.2 Standing to file a petition.

A representation petition may be filed by: an individual; a labor

organization; two or more labor organizations acting as a joint-

petitioner; an individual acting on behalf of any employee(s); an

agency or activity; or a combination of the above: Provided, however,

that

(a) only a labor organization has standing to file a petition

pursuant to section 2422.1(a)(1);

(b) only an individual has standing to file a petition pursuant to

section 2422.1(a)(2); and

(c) only an agency or a labor organization may file a petition

pursuant to section 2422.1(b) or (c).

Sec. 2422.3 Contents of a petition.

(a) What to file. A petition must be filed on a form prescribed by

the Authority and contain the following information:

(1) The name and mailing address for each agency or activity

affected by issues raised in the petition, including street number,

city, state and zip code.

(2) The name, mailing address and work telephone number of the

contact person for each agency or activity affected by issues raised in

the petition.

(3) The name and mailing address for each labor organization

affected by issues raised in the petition, including street number,

city, state and zip code. If a labor organization is affiliated with a

national organization, the local designation and the national

affiliation should both be included. If a labor organization is an

exclusive representative of any of the employees affected by issues

raised in the petition, the date of the recognition or certification

and the date any collective bargaining agreement covering the unit will

expire or when the most recent agreement did expire should be included,

if known.

(4) The name, mailing address and work telephone number of the

contact person for each labor organization affected by issues raised in

the petition.

(5) The name and mailing address for the petitioner, including

street number, city, state and zip code. If a labor organization

petitioner is affiliated with a national organization, the local

designation and the national affiliation should both be included.

(6) A description of the unit(s) affected by issues raised in the

petition. The description should generally indicate the geographic

locations and the classifications of the employees included (or sought

to be included) in, and excluded (or sought to be excluded) from, the

unit.

(7) The approximate number of employees in the unit(s) affected by

issues raised in the petition.

(8) A clear and concise statement of the issues raised by the

petition and the results the petitioner seeks.

(9) A declaration by the person signing the petition, under the

penalties of the Criminal Code (18 U.S.C. 1001), that the contents of

the petition are true and correct to the best of the person's knowledge

and belief.

(10) The signature, title, mailing address and telephone number of

the person filing the petition.

(b) Compliance with 5 U.S.C. 7111(e). A labor organization/

petitioner complies with 5 U.S.C. 7111(e) by submitting to the agency

or activity and to the Department of Labor a roster of its officers and

representatives, a copy of its constitution and bylaws, and a statement

of its objectives. By signing the petition form, the labor

organization/petitioner certifies that it has submitted these documents

to the activity or agency and to the Department of Labor.

(c) Showing of interest supporting a representation petition. When

filing a petition requiring a showing of interest, the petitioner must:

(1) So indicate on the petition form;

(2) Submit with the petition a showing of interest of not less than

thirty percent (30%) of the employees in the unit involved in the

petition; and

(3) Include an alphabetical list of the names constituting the

showing of interest.

(d) Petition seeking dues allotment. When there is no exclusive

representative, a petition seeking certification for dues allotment

shall be accompanied by a showing of membership in the petitioner of

not less than ten percent (10%) of the employees in the unit claimed to

be appropriate. An alphabetical list of names constituting the showing

of membership must be submitted.

Sec. 2422.4 Service requirements.

Every petition, motion, brief, request, challenge, written

objection, or application for review shall be served on all parties

affected by issues raised in the filing. The service shall include all

documentation in support thereof, with the exception of a showing of

interest, evidence supporting challenges to the validity of a showing

of interest, and evidence supporting objections to an election. The

filer must submit a written statement of service to the Regional

Director.

Sec. 2422.5 Filing petitions.

(a) Where to file. Petitions must be filed with the Regional

Director for the

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region in which the unit or employee(s) affected by issues raised in

the petition are located. If the unit(s) or employees are located in

two or more regions of the Authority, the petitions must be filed with

the Regional Director for the region in which the headquarters of the

agency or activity is located.

(b) Number of copies. An original and two (2) copies of the

petition and the accompanying material must be filed with the Regional

Director.

(c) Date of filing. A petition is filed when it is received by the

appropriate Regional Director.

Sec. 2422.6 Notification of filing.

(a) Notification to parties. After a petition is filed, the

Regional Director will notify any labor organization, agency or

activity that the parties have identified as being affected by issues

raised by the petition, that a petition has been filed with the

Regional Director. The Regional Director will also make reasonable

efforts to identify and notify any other party affected by the issues

raised by the petition.

(b) Contents of the notification. The notification will inform the

labor organization, agency or activity of:

(1) The name of the petitioner;

(2) The description of the unit(s) or employees affected by issues

raised in the petition; and,

(3) A statement that all affected parties should advise the

Regional Director in writing of their interest in the issues raised in

the petition.

Sec. 2422.7 Posting notice of filing of a petition.

(a) Posting notice of petition. When appropriate, the Regional

Director, after the filing of a representation petition, will direct

the agency or activity to post copies of a notice to all employees in

places where notices are normally posted for the employees affected by

issues raised in the petition and/or distribute copies of a notice in a

manner by which notices are normally distributed.

(b) Contents of notice. The notice shall advise affected employees

about the petition.

(c) Duration of notice. The notice should be conspicuously posted

for a period of ten (10) days and not be altered, defaced, or covered

by other material.

Sec. 2422.8 Intervention and cross-petitions.

(a) Cross-petitions. A cross-petition is a petition which involves

any employees in a unit covered by a pending representation petition.

Cross-petitions must be filed in accordance with this subpart.

(b) Intervention requests and cross-petitions. A request to

intervene and a cross-petition, accompanied by any necessary showing of

interest, must be submitted in writing and filed with either the

Regional Director or the Hearing Officer before the hearing opens,

unless good cause is shown for granting an extension. If no hearing is

held, a request to intervene and a cross-petition must be filed prior

to action being taken pursuant to Sec. 2422.30.

(c) Labor organization intervention requests. Except for incumbent

intervenors, a labor organization seeking to intervene shall submit a

statement that it has complied with 5 U.S.C. 7111(e) and one of the

following:

(1) A showing of interest of ten percent (10%) or more of the

employees in the unit covered by a petition seeking an election, with

an alphabetical list of the names of the employees constituting the

showing of interest; or

(2) A current or recently expired collective bargaining agreement

covering any of the employees in the unit affected by issues raised in

the petition; or

(3) Evidence that it is or was, prior to a reorganization, the

recognized or certified exclusive representative of any of the

employees affected by issues raised in the petition.

(d) Incumbent. An incumbent exclusive representative, without

regard to the requirements of paragraph (c) of this section, will be

considered a party in any representation proceeding raising issues that

affect employees the incumbent represents, unless it serves the

Regional Director with a written disclaimer of any representation

interest in the claimed unit.

(e) Employing agency. An agency or activity will be considered a

party if any of its employees are affected by issues raised in the

petition.

(f) Agency or activity intervention. An agency or activity seeking

to intervene in any representation proceeding must submit evidence that

one or more employees of the agency or activity may be affected by

issues raised in the petition.

Sec. 2422.9 Adequacy of showing of interest.

(a) Adequacy. Adequacy of a showing of interest refers to the

percentage of employees in the unit involved as required by

Secs. 2422.3 (c) and (d) and 2422.8(c)(1).

(b) Regional Director investigation and Decision and Order. The

Regional Director will conduct such investigation as deemed

appropriate. A Regional Director's determination that the showing of

interest is adequate is final and binding and not subject to collateral

attack at a representation hearing or on appeal to the Authority. If

the Regional Director determines that a showing of interest is

inadequate, the Regional Director will issue a Decision and Order

dismissing the petition, or denying a request for intervention.

Sec. 2422.10 Validity of showing of interest.

(a) Validity. Validity questions are raised by challenges to a

showing of interest on grounds other than adequacy.

(b) Validity challenge. The Regional Director or any party may

challenge the validity of a showing of interest.

(c) When and where validity challenges may be filed. Party

challenges to the validity of a showing of interest must be in writing

and filed with the Regional Director or the Hearing Officer before the

hearing opens, unless good cause is shown for granting an extension. If

no hearing is held, challenges to the validity of a showing of interest

must be filed prior to action being taken pursuant to Sec. 2422.30.

(d) Contents of validity challenges. Challenges to the validity of

a showing of interest must be supported with evidence.

(e) Regional Director investigation and Decision and Order. The

Regional Director will conduct such investigation as deemed

appropriate. The Regional Director's determination that a showing of

interest is valid is final and binding and is not subject to collateral

attack or appeal to the Authority. If the Regional Director finds that

the showing of interest is not valid, the Regional Director will issue

a Decision and Order dismissing the petition or denying the request to

intervene.

Sec. 2422.11 Challenge to the status of a labor organization.

(a) Basis of challenge to labor organization status. The only basis

on which a challenge to the status of a labor organization may be made

is compliance with 5 U.S.C. 7103(a)(4).

(b) Format and time for filing a challenge. Any party filing a

challenge to the status of a labor organization involved in the

processing of a petition must do so in writing to the Regional Director

or the Hearing Officer before the hearing opens, unless good cause is

shown for granting an extension. If no hearing is held, challenges must

be filed prior to action being taken pursuant to Sec. 2422.30.

Sec. 2422.12 Timeliness of petitions seeking an election.

(a) Election bar. Where there is no certified exclusive

representative, a

[[Page 67294]]

petition seeking an election will not be considered timely if filed

within twelve (12) months of a valid election involving the same unit

or a subdivision of the same unit.

(b) Certification bar. Where there is a certified exclusive

representative of employees, a petition seeking an election will not be

considered timely if filed within twelve (12) months after the

certification of the exclusive representative of the employees in an

appropriate unit. If a collective bargaining agreement covering the

claimed unit is pending agency head review under 5 U.S.C. 7114(c) or is

in effect, paragraphs (c), (d), or (e) of this section apply.

(c) Bar during 5 U.S.C. 7114(c) agency head review. A petition

seeking an election will not be considered timely if filed during the

period of agency head review under 5 U.S.C. 7114(c). This bar expires

upon either the passage of thirty (30) days absent agency head action,

or upon the date of any timely agency head action.

(d) Contract bar where the contract is for three (3) years or less.

Where a collective bargaining agreement is in effect covering the

claimed unit and has a term of three (3) years or less from the date it

became effective, a petition seeking an election will be considered

timely if filed not more than one hundred and five (105) and not less

than sixty (60) days prior to the expiration of the agreement.

(e) Contract bar where the contract is for more than three (3)

years. Where a collective bargaining agreement is in effect covering

the claimed unit and has a term of more than three (3) years from the

date it became effective, a petition seeking an election will be

considered timely if filed not more than one hundred and five (105) and

not less than sixty (60) days prior to the expiration of the initial

three (3) year period, and any time after the expiration of the initial

three (3) year period.

(f) Unusual circumstances. A petition seeking an election or a

determination relating to representation matters may be filed at any

time when unusual circumstances exist that substantially affect the

unit or majority representation.

(g) Premature extension. Where a collective bargaining agreement

with a term of three (3) years or less has been extended prior to sixty

(60) days before its expiration date, the extension will not serve as a

basis for dismissal of a petition seeking an election filed in

accordance with this section.

(h) Contract requirements. Collective bargaining agreements,

including agreements that go into effect under 5 U.S.C. 7114(c) and

those that automatically renew without further action by the parties,

do not constitute a bar to a petition seeking an election under this

section unless a clear and unambiguous effective date, renewal date

where applicable, duration, and termination date are ascertainable from

the agreement and relevant accompanying documentation.

Sec. 2422.13 Resolution of issues raised by a petition.

(a) Meetings prior to filing a representation petition. All parties

affected by the representation issues that may be raised in a petition

are encouraged to meet prior to the filing of the petition to discuss

their interests and narrow and resolve the issues. If requested by all

parties a representative of the appropriate Regional Office will

participate in these meetings.

(b) Meetings to narrow and resolve the issues after the petition is

filed. After a petition is filed, the Regional Director may require all

affected parties to meet to narrow and resolve the issues raised in the

petition.

Sec. 2422.14 Effect of withdrawal/dismissal.

(a) Withdrawal/dismissal less than sixty (60) days before contract

expiration. When a petition seeking an election that has been timely

filed is withdrawn by the petitioner or dismissed by the Regional

Director less than sixty (60) days prior to the expiration of an

existing agreement between the incumbent exclusive representative and

the agency or activity or any time after the expiration of the

agreement, another petition seeking an election will not be considered

timely if filed within a ninety (90) day period from either:

(1) The date the withdrawal is approved; or

(2) The date the petition is dismissed by the Regional Director

when no application for review is filed with the Authority; or

(3) The date the Authority rules on an application for review.

Other pending petitions that have been timely filed under this Part

will continue to be processed.

(b) Withdrawal by petitioner. A petitioner who submits a withdrawal

request for a petition seeking an election that is received by the

Regional Director after the notice of hearing issues or after approval

of an election agreement, whichever occurs first, will be barred from

filing another petition seeking an election for the same unit or any

subdivision of the unit for six (6) months from the date of the

approval of the withdrawal by the Regional Director.

(c) Withdrawal by incumbent. When an election is not held because

the incumbent disclaims any representation interest in a unit, a

petition by the incumbent seeking an election involving the same unit

or a subdivision of the same unit will not be considered timely if

filed within six (6) months of cancellation of the election.

Sec. 2422.15 Duty to furnish information and cooperate.

(a) Relevant information. After a petition is filed, all parties

must, upon request of the Regional Director, furnish the Regional

Director and serve all parties affected by issues raised in the

petition with information concerning parties, issues, and agreements

raised in or affected by the petition.

(b) Inclusions and exclusions. After a petition seeking an election

is filed, the Regional Director may direct the agency or activity to

furnish the Regional Director and all parties affected by issues raised

in the petition with a current alphabetized list of employees and job

classifications included in and/or excluded from the existing or

claimed unit affected by issues raised in the petition.

(c) Cooperation. All parties are required to cooperate in every

aspect of the representation process. This obligation includes

cooperating fully with the Regional Director, submitting all required

and requested information, and participating in prehearing conferences

and hearings. The failure to cooperate in the representation process

may result in the Regional Director taking appropriate action,

including dismissal of the petition or denial of intervention.

Sec. 2422.16 Election agreements or directed elections.

(a) Election agreements. Parties are encouraged to enter into

election agreements.

(b) Regional Director directed election. If the parties are unable

to agree on procedural matters, specifically, the eligibility period,

method of election, dates, hours, or locations of the election, the

Regional Director will decide election procedures and issue a Direction

of Election, without prejudice to the rights of a party to file

objections to the procedural conduct of the election.

(c) Opportunity for a hearing. Before directing an election, the

Regional Director shall provide affected parties an opportunity for a

hearing on other than procedural matters, and thereafter may:

(1) Issue a Decision and Order; or

(2) If there are no questions regarding unit appropriateness, issue

a Direction

[[Page 67295]]

of Election without a Decision and Order.

(d) Challenges or objections to a directed election. A Direction of

Election issued under this section will be issued without prejudice to

the right of a party to file a challenge to the eligibility of any

person participating in the election and/or objections to the election.

Sec. 2422.17 Notice of hearing and prehearing conference.

(a) Purpose of notice of a hearing. The Regional Director may issue

a notice of hearing involving any issues raised in the petition.

(b) Contents. The notice of hearing will advise affected parties

about the hearing. The Regional Director will also notify affected

parties of the issues raised in the petition and establish a date for

the prehearing conference.

(c) Prehearing conference. A prehearing conference will be

conducted by the Hearing Officer, either by meeting or teleconference.

All parties must participate in a prehearing conference and be prepared

to fully discuss, narrow and resolve the issues set forth in the

notification of the prehearing conference.

(d) No interlocutory appeal of hearing determination. A Regional

Director's determination of whether to issue a notice of hearing is not

appealable to the Authority.

Sec. 2422.18 Hearing procedures.

(a) Purpose of a hearing. Representation hearings are considered

investigatory and not adversarial. The purpose of the hearing is to

develop a full and complete record of relevant and material facts.

(b) Conduct of hearing. Hearings will be open to the public unless

otherwise ordered by the Hearing Officer. There is no burden of proof,

with the exception of proceedings on objections to elections as

provided for in Sec. 2422.27(b). Formal rules of evidence do not apply.

(c) Hearing officer. Hearings will be conducted by a Hearing

Officer appointed by the Regional Director. Another Hearing Officer may

be substituted for the presiding Hearing Officer at any time.

(d) Transcript. An official reporter will make the official

transcript of the hearing. Copies of the official transcript may be

examined in the appropriate Regional Office during normal working

hours. Requests by parties to purchase copies of the official

transcript should be made to the official hearing reporter.

Sec. 2422.19 Motions.

(a) Purpose of a motion. Subsequent to the issuance of a Notice of

Hearing in a representation proceeding, a party seeking a ruling, an

order, or relief must do so by filing or raising a motion stating the

order or relief sought and the grounds therefor. Challenges and other

filings referenced in other sections of this subpart may, in the

discretion of the Regional Director or Hearing Officer, be treated as a

motion.

(b) Prehearing motions. Prehearing motions must be filed in writing

with the Regional Director. Any response must be filed with the

Regional Director within five (5) days after service of the motion. The

Regional Director may rule on the motion or refer the motion to the

Hearing Officer.

(c) Motions made at the hearing. During the hearing, motions will

be made to the Hearing Officer and may be oral on the record, unless

otherwise required in this subpart to be in writing. Responses may be

oral on the record or in writing, but, absent permission of the Hearing

Officer, must be provided before the hearing closes. When appropriate,

the Hearing Officer will rule on motions made at the hearing or

referred to the Hearing Officer by the Regional Director.

(d) Posthearing motions. Motions made after the hearing closes must

be filed in writing with the Regional Director. Any response to a

posthearing motion must be filed with the Regional Director within five

(5) days after service of the motion.

Sec. 2422.20 Rights of parties at a hearing.

(a) Rights. A party at a hearing will have the right:

(1) To appear in person or by a representative;

(2) To examine and cross-examine witnesses; and

(3) To introduce into the record relevant evidence.

(b) Documentary evidence and stipulations. Parties must submit two

(2) copies of documentary evidence to the Hearing Officer and copies to

all other parties. Stipulations of fact between/among the parties may

be introduced into evidence.

(c) Oral argument. Parties will be entitled to a reasonable period

prior to the close of the hearing for oral argument. Presentation of a

closing oral argument does not preclude a party from filing a brief

under paragraph (d) of this section.

(d) Briefs. A party will be afforded an opportunity to file a brief

with the Regional Director.

(1) An original and two (2) copies of a brief must be filed with

the Regional Director within thirty (30) days from the close of the

hearing.

(2) A written request for an extension of time to file a brief must

be filed with and received by the Regional Director no later than five

(5) days before the date the brief is due.

(3) No reply brief may be filed without permission of the Regional

Director.

Sec. 2422.21 Duties and powers of the Hearing Officer.

(a) Duties of the Hearing Officer. The Hearing Officer will receive

evidence and inquire fully into the relevant and material facts

concerning the matters that are the subject of the hearing, and may

make recommendations on the record to the Regional Director.

(b) Powers of the Hearing Officer. During the period a case is

assigned to a Hearing Officer by the Regional Director and prior to the

close of the hearing, the Hearing Officer may take any action necessary

to schedule, conduct, continue, control, and regulate the hearing,

including ruling on motions when appropriate.

Sec. 2422.22 Objections to the conduct of the hearing.

(a) Objections. Objections are oral or written complaints

concerning the conduct of a hearing.

(b) Exceptions to rulings. There are automatic exceptions to all

adverse rulings.

Sec. 2422.23 Election procedures.

(a) Regional Director conducts or supervises election. The Regional

Director will decide to conduct or supervise the election. In

supervised elections, agencies will perform all acts as specified in

the Election Agreement or Direction of Election.

(b) Notice of election. Prior to the election a notice of election,

prepared by the Regional Director, will be posted by the activity in

places where notices to employees are customarily posted and/or

distributed in a manner by which notices are normally distributed. The

notice of election will contain the details and procedures of the

election, including the appropriate unit, the eligibility period, the

date(s), hour(s) and location(s) of the election, a sample ballot, and

the effect of the vote.

(c) Sample ballot. The reproduction of any document purporting to

be a copy of the official ballot that suggests either directly or

indirectly to employees that the Authority endorses a particular choice

in the election may constitute grounds for setting aside an election if

objections are filed under Sec. 2422.26.

(d) Secret ballot. All elections will be by secret ballot.

(e) Intervenor withdrawal from ballot. When two or more labor

organizations

[[Page 67296]]

are included as choices in an election, an intervening labor

organization may, prior to the approval of an election agreement or

before the direction of an election, file a written request with the

Regional Director to remove its name from the ballot. If the request is

not received prior to the approval of an election agreement or before

the direction of an election, unless the parties and the Regional

Director agree otherwise, the intervening labor organization will

remain on the ballot. The Regional Director's decision on the request

is final and not subject to the filing of an application for review

with the Authority.

(f) Incumbent withdrawal from ballot in an election to decertify an

incumbent representative. When there is no intervening labor

organization, an election to decertify an incumbent exclusive

representative will not be held if the incumbent provides the Regional

Director with a written disclaimer of any representation interest in

the unit. When there is an intervenor, an election will be held if the

intervening labor organization proffers a thirty percent (30%) showing

of interest within the time period established by the Regional

Director.

(g) Petitioner withdraws from ballot in an election. When there is

no intervening labor organization, an election will not be held if the

petitioner provides the Regional Director with a written request to

withdraw the petition. When there is an intervenor, an election will be

held if the intervening labor organization proffers a thirty percent

(30%) showing of interest within the time period established by the

Regional Director.

(h) Observers. All parties are entitled to representation at the

polling location(s) by observers of their own selection subject to the

Regional Director's approval.

(1) Parties desiring to name observers must file in writing with

the Regional Director a request for specifically named observers at

least fifteen (15) days prior to an election. The Regional Director may

grant an extension of time for filing a request for specifically named

observers for good cause where a party requests such an extension or on

the Regional Director's own motion. The request must name and identify

the observers requested.

(2) An agency or activity may use as its observers any employees

who are not eligible to vote in the election, except:

(i) Supervisors or management officials;

(ii) Employees who have any official connection with any of the

labor organizations involved; or

(iii) Non-employees of the Federal government.

(3) A labor organization may use as its observers any employees

eligible to vote in the election, except:

(i) Employees on leave without pay status who are working for the

labor organization involved; or

(ii) Employees who hold an elected office in the union.

(4) Objections to a request for specific observers must be filed

with the Regional Director stating the reasons in support within five

(5) days after service of the request.

(5) The Regional Director's ruling on requests for and objections

to observers is final and binding and is not subject to the filing of

an application for review with the Authority.

Sec. 2422.24 Challenged ballots.

(a) Filing challenges. A party or the Regional Director may, for

good cause, challenge the eligibility of any person to participate in

the election prior to the employee voting.

(b) Challenged ballot procedure. An individual whose eligibility to

vote is in dispute will be given the opportunity to vote a challenged

ballot. If the parties and the Region are unable to resolve the

challenged ballot(s) prior to the tally of ballots, the unresolved

challenged ballot(s) will be impounded and preserved until a

determination can be made, if necessary, by the Regional Director.

Sec. 2422.25 Tally of ballots.

(a) Tallying the ballots. When the election is concluded, the

Regional Director will tally the ballots.

(b) Service of the tally. When the tally is completed, the Regional

Director will serve the tally of ballots on the parties in accordance

with the election agreement or direction of election.

(c) Valid ballots cast. Representation will be determined by the

majority of the valid ballots cast.

Sec. 2422.26 Objections to the election.

(a) Filing objections to the election. Objections to the procedural

conduct of the election or to conduct that may have improperly affected

the results of the election may be filed by any party. Objections must

be filed and received by the Regional Director within five (5) days

after the tally of ballots has been served. Any objections must be

timely regardless of whether the challenged ballots are sufficient in

number to affect the results of the election. The objections must be

supported by clear and concise reasons. An original and two (2) copies

of the objections must be received by the Regional Director.

(b) Supporting evidence. The objecting party must file with the

Regional Director evidence, including signed statements, documents and

other materials supporting the objections within ten (10) days after

the objections are filed.

Sec. 2422.27 Determinative challenged ballots and objections.

(a) Investigation. The Regional Director will investigate

objections and/or determinative challenged ballots that are sufficient

in number to affect the results of the election.

(b) Burden of proof. A party filing objections to the election

bears the burden of proof by a preponderance of the evidence concerning

those objections. However, no party bears the burden of proof on

challenged ballots.

(c) Regional Director Action. After investigation, the Regional

Director will take appropriate action consistent with Sec. 2422.30.

(d) Consolidated hearing on objections and/or determinative

challenged ballots and an unfair labor practice hearing. When

appropriate, and in accordance with Sec. 2422.33, objections and/or

determinative challenged ballots may be consolidated with an unfair

labor practice hearing. Such consolidated hearings will be conducted by

an Administrative Law Judge. Exceptions and related submissions must be

filed with the Authority and the Authority will issue a decision in

accordance with Part 2423 of this chapter, except for the following:

(1) Sections 2423.18 and 2423.19(j) of this Subchapter concerning

the burden of proof and settlement conferences are not applicable;

(2) The Administrative Law Judge may not recommend remedial action

to be taken or notices to be posted as provided by Sec. 2423.26(a) of

this Subchapter; and,

(3) References to ``charge'' and ``complaint'' in Sec. 2423.26(b)

of this chapter will be omitted.

Sec. 2422.28 Runoff elections.

(a) When a runoff may be held. A runoff election is required in an

election involving at least three (3) choices, one of which is ``no

union'' or ``neither,'' when no choice receives a majority of the valid

ballots cast. However, a runoff may not be held until the Regional

Director has ruled on objections to the election and determinative

challenged ballots.

(b) Eligibility. Employees who were eligible to vote in the

original election and who are also eligible on the date of the runoff

election may vote in the runoff election.

[[Page 67297]]

(c) Ballot. The ballot in the runoff election will provide for a

selection between the two choices receiving the largest and second

largest number of votes in the election.

Sec. 2422.29 Inconclusive elections.

(a) Inconclusive elections. An inconclusive election is one where

challenged ballots are not sufficient to affect the outcome of the

election and one of the following occurs:

(1) The ballot provides for at least three (3) choices, one of

which is ``no union'' or ``neither'' and the votes are equally divided;

or

(2) The ballot provides for at least three (3) choices, the choice

receiving the highest number of votes does not receive a majority, and

at least two other choices receive the next highest and same number of

votes; or

(3) When a runoff ballot provides for a choice between two labor

organizations and results in the votes being equally divided; or

(4) When the Regional Director determines that there have been

significant procedural irregularities.

(b) Eligibility to vote in a rerun election. A current payroll

period will be used to determine eligibility to vote in a rerun

election.

(c) Ballot. If the Regional Director determines that the election

is inconclusive, the election will be rerun with all the choices that

appeared on the original ballot.

(d) Number of reruns. There will be only one rerun of an

inconclusive election. If the rerun results in another inconclusive

election, the tally of ballots will indicate a majority of valid

ballots has not been cast for any choice and a certification of results

will be issued. If necessary, a runoff may be held when an original

election is rerun.

Sec. 2422.30 Regional Director investigations, notices of hearings,

actions, and Decisions and Orders.

(a) Regional Director investigation. The Regional Director will

make such investigation of the petition and any other matter as the

Regional Director deems necessary.

(b) Regional Director notice of hearing. The Regional Director will

issue a notice of hearing to inquire into any matter about which a

material issue of fact exists, and any time there is reasonable cause

to believe a question exists regarding unit appropriateness.

(c) Regional Director action and Decision and Order. After

investigation and/or hearing, when a hearing has been ordered, the

Regional Director will resolve the matter in dispute and, when

appropriate, direct an election or approve an election agreement, or

issue a Decision and Order.

(d) Appeal of Regional Director Decision and Order. A party may

file with the Authority an application for review of a Regional

Director Decision and Order.

(e) Contents of the Record. When no hearing has been conducted all

material submitted to and considered by the Regional Director during

the investigation becomes a part of the record. When a hearing has been

conducted, the transcript and all material entered into evidence,

including any posthearing briefs, become a part of the record.

Sec. 2422.31 Application for review of a Regional Director Decision

and Order.

(a) Filing an application for review. A party must file an

application for review with the Authority within sixty (60) days of the

Regional Director's Decision and Order. The sixty (60) day time limit

provided for in 5 U.S.C. 7105(f) may not be extended or waived.

(b) Contents. An application for review must be sufficient to

enable the Authority to rule on the application without recourse to the

record; however, the Authority may, in its discretion, examine the

record in evaluating the application. An application must specify the

matters and rulings to which exception(s) is taken, include a summary

of evidence relating to any issue raised in the application, and make

specific reference to page citations in the transcript if a hearing was

held. An application may not raise any issue or rely on any facts not

timely presented to the Hearing Officer or Regional Director.

(c) Review. The Authority may grant an application for review only

when the application demonstrates that review is warranted on one or

more of the following grounds:

(1) The decision raises an issue for which there is an absence of

precedent;

(2) Established law or policy warrants reconsideration; or,

(3) There is a genuine issue over whether the Regional Director

has:

(i) Failed to apply established law;

(ii) Committed a prejudicial procedural error;

(iii) Committed a clear and prejudicial error concerning a

substantial factual matter.

(d) Opposition. A party may file with the Authority an opposition

to an application for review within ten (10) days after the party is

served with the application. A copy must be served on the Regional

Director and all other parties and a statement of service must be filed

with the Authority.

(e) Regional Director Decision and Order becomes the Authority's

action. A Decision and Order of a Regional Director becomes the action

of the Authority when:

(1) No application for review is filed with the Authority within

sixty (60) days after the date of the Regional Director's Decision and

Order; or

(2) A timely application for review is filed with the Authority and

the Authority does not undertake to grant review of the Regional

Director's Decision and Order within sixty (60) days of the filing of

the application; or

(3) The Authority denies an application for review of the Regional

Director's Decision and Order.

(f) Authority grant of review and stay. The Authority may rule on

the issue(s) in an application for review in its order granting the

application for review. Neither filing nor granting an application for

review shall stay any action ordered by the Regional Director unless

specifically ordered by the Authority.

(g) Briefs if review is granted. If the Authority does not rule on

the issue(s) in the application for review in its order granting

review, the Authority may, in its discretion, afford the parties an

opportunity to file briefs. The briefs will be limited to the issue(s)

referenced in the Authority's order granting review.

Sec. 2422.32 Certifications and revocations.

(a) Certifications. The Regional Director will issue an appropriate

certification when:

(1) After an election, runoff, or rerun,

(i) No objections are filed or challenged ballots are not

determinative, or

(ii) Objections and determinative challenged ballots are decided

and resolved; or

(2) The Regional Director issues a Decision and Order requiring a

certification and the Decision and Order becomes the action of the

Authority under Sec. 2422.31(e) or the Authority otherwise directs the

issuance of a certification.

(b) Revocations. Without prejudice to any rights and obligations

which may exist under the Statute, the Regional Director will revoke a

recognition or certification, as appropriate, and provide a written

statement of reasons when:

(1) An incumbent exclusive representative files, during a

representation proceeding, a disclaimer of any representational

interest in the unit; or

(2) Due to a substantial change in the character and scope of the

unit, the unit is no longer appropriate and an election is not

warranted.

[[Page 67298]]

Sec. 2422.33 Relief obtainable under Part 2423.

Remedial relief that was or could have been obtained as a result of

a motion, objection, or challenge filed or raised under this subpart,

may not be the basis for similar relief if filed or raised as an unfair

labor practice under Part 2423 of this Chapter: Provided, however, that

related matters may be consolidated for hearing as noted in

Sec. 2422.27(d) of this subpart.

Sec. 2422.34 Rights and obligations during the pendency of

representation proceedings.

(a) Existing recognitions, agreements, and obligations under the

Statute. During the pendency of any representation proceeding, parties

are obligated to maintain existing recognitions, adhere to the terms

and conditions of existing collective bargaining agreements, and

fulfill all other representational and bargaining responsibilities

under the Statute.

(b) Unit status of individual employees. Notwithstanding paragraph

(a) of this section and except as otherwise prohibited by law, a party

may take action based on its position regarding the bargaining unit

status of individual employees, pursuant to 5 U.S.C. 7103(a)(2), 7112

(b) and (c): Provided, however, that its actions may be challenged,

reviewed, and remedied where appropriate.

PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS

5. The authority citation for Part 2429 continues to read as

follows:

Authority: 5 U.S.C. 7134; Sec. 2429.18 also issued under 28

U.S.C. 2112(a).

6. Section 2429.21 is amended by revising paragraphs (a) and (b) to

read as follows:

Sec. 2429.21 Computation of time for filing papers.

(a) In computing any period of time prescribed by or allowed by

this subchapter, except in agreement bar situations described in

Sec. 2422.12 (c), (d), (e), and (f) of this subchapter, and except as

to the filing of exceptions to an arbitrator's award under Sec. 2425.1

of this subchapter, the day of the act, event, or default from or after

which the designated period of time begins to run shall not be

included. The last day of the period so computed is to be included

unless it is a Saturday, Sunday, or a Federal legal holiday in which

event the period shall run until the end of the next day which is

neither a Saturday, Sunday, or a Federal legal holiday. Provided,

however, in agreement bar situations described in Sec. 2422.12 (c),

(d), (e), and (f), if the 60th day prior to the expiration date of an

agreement falls on Saturday, Sunday, or a Federal legal holiday, a

petition, to be timely, must be filed by the close of business on the

last official workday preceding the 60th day. When the period of time

prescribed or allowed is 7 days or less, intermediate Saturdays,

Sundays, and Federal legal holidays shall be excluded from the

computations.

(b) Except when filing an unfair labor practice charge pursuant to

Sec. 2423.6 of this subchapter, a representation petition pursuant to

Part 2422 of this subchapter, and a request for an extension of time

pursuant to Sec. 2429.23(a) of this part, when this subchapter requires

the filing of any paper with the Authority, the General Counsel, a

Regional Director, or an Administrative Law Judge, the date of filing

shall be determined by the date of mailing indicated by the postmark

date. If no postmark date is evident on the mailing, it shall be

presumed to have been mailed 5 days prior to receipt. If the filing is

by personal delivery, it shall be considered filed on the date it is

received by the Authority or the officer or agent designated to receive

such matter.

7. Section 2429.22 is revised to read as follows:

Sec. 2429.22 Additional time after service by mail.

Except as to the filing of an application for review to a Regional

Director's Decision and Order under Sec. 2422.31 of this subchapter,

whenever a party has the right or is required to do some act pursuant

to this subchapter within a prescribed period after service of a notice

or other paper upon such party, and the notice or paper is served on

such party by mail, five (5) days shall be added to the prescribed

period: Provided, however, That five (5) days shall not be added in any

instance where an extension of time has been granted.

Dated: December 22, 1995.

Solly Thomas,

Executive Director, Federal Labor Relations Authority.

[FR Doc. 95-31413 Filed 12-28-95; 8:45 am]

BILLING CODE 6727-01-P